Excerpt:.....it clearly purports to be more than a mere endorsement vouching simply for the correctness of the entries. here the intention of the plaintiff and the zemindar clearly was that the statement in question should furnish evidence of the latter's liability. ..expenditure' was clearly intended to operate as a release of the zemindar's right to claim an account from the plaintiff and this is within the meaning of section 5 a distinct matter from the acknowledgment by the zemindar of his liability to the plaintiff for a certain amount which is the effect of the preceding statement. it is perhaps best stated in the words of jessel, m......v. still (1894) 1 ch. 73 lindley, l.j. says 'what is necessary in order to set aside a settled account or a release, or both together, when the release proceeds upon the footing of an account? it is essential to show that there has been some injustice done to show that there has been some fraud, some pressure, some overcharge, something wrong to cloak up which the release has been obtained. prove that and the release cannot stand.' in the same case davey, l.j. states the law in this way: ' i take it that a release in the eye of a court of equity is nothing more than a record by deed of a settled account and unless the settled account is unimpeachable, the fact of the parties having signed a release will not assist those who depend upon it for a defence.' in the circumstances of this.....

Judgment:

Abdur Rahim, Officiating C.J.

1. This Appeal is from the judgment of Bakewell, J. dismissing a suit instituted by one Mr. V. Ramaswami Aiyar against the Zemindarni of Sivagiri to recover a sum of Rs. 48,116-12-4. The late Zemindar, whose mother is the defendant, appointed the plaintiff by powers-of-attorney dated the 31st July 1911. and 31st October 1912, his agent to manage his affairs at Madras and elsewhere excepting the Zemindari itself. The plaintiff founds his claim to the extent of Rs. 31,000-12-4 on the basis of accounts settled between him and the late Zemindar on the 14th October 1913 showing this amount to be due to him for remuneration of services rendered by him and for moneys advanced by him to the Zemindar from time to time. Of the balance Rs. 12,741-10-0 consists, he says, of various sums of money which he paid to certain creditors of the Zemindar after his power-of-attorney was cancelled (that was on 15th October 1913) and which have not been recouped to him. He paid those debts as he had incurred liability for them on behalf of the Zemindar. The rest of the amount claimed is on account of interest on these sums at the rate of 12 per cent. per annum which he alleges the Zemindar had agreed to pay.

2. It is alleged in defence that when the Court of Wards handed over the Zemindari of Sivagiri to the deceased Zemindar in April 1910 there was a saving of about 8 lakhs of rupees but that about the middle of 1911 he came under the sinister influence of the plaintiff who acquired considerable ascendancy over him, with the result that the Zemindar went on contracting large debts. The powers-of-attorney mentioned in the plaint were procured from the Zemindar by means of fraud and undue influence, not for any lawful or legitimate purpose, but for contracting large and unnecessary debts so that the plaintiff might enrich himself at the expense of the Zemindar. The written statement goes on to state that about September 1913 some friends and relations of the Zemindar finding that he was going from bad to worse under the influence of the plaintiff prevailed upon him to dimiss the plaintiff from his service and to renounce his company. As regards the settlement of account, the deed of release and the power of attorney executed by the Zemindar on the 14th October 1913, it is stated that his signatures to these documents were obtained in suspicious circumstances when the Zemindar had no proper and independent advice. The socalled settlement of account is impeached as false and fraudulent. It is stated that the plaintiff never rendered account to the Zemindar and the latter never looked into any accounts ; that the accounts relied on contain fraudulent omissions and false debits amounting to a considerable sum as set out in the schedule attached to the written statement. The defendant charges that if an account be directed by the Court the plaintiff will be found to be liable to the defendant for not less than a lakh of rupees. The entire accounts commencing from 31st July 1911 to 13th October 1913, that is more than two years and relating to about six lakhs of rupees are contained in 73 pages of a small book marked as Exhibit E. Page 69 shows that the amount to the debit of the Zemindar on the 13th October 1913 was Rs. 3,58,140-12-4 and that to his credit Rs. 1,43,290-0-0 so that the total indebtedness of the Zemindar is stated at Rs. 2,14,850-12-4. At the top of the next page, i.e., 70, is the entry 'due to me (i.e., to the plaintiff himself) Rs. 24,850-12-4 ;' then underneath there appear ' details ' consisting of four items of Rs. 40,000, 45,000, 25,000 and 80,000 as being due to other persons. At the foot there is a statement in these words : ' The balance of the liability is made up of moneys advanced by my agent Mr. V. Ramaswami Aiyar from time to time on my behalf. The above does not include interest due on them.' At page 71 it continues : ' I have examined the several items of account entered herein in detail and I find them to be correct. I hereby release my agent Mr. V. Ramaswami Aiyar from all claims to account against him by me or any one claiming under or in trust for me and from all claims, actions and demands whatsoever in respect of the said receipts and disbursements. I hereby acknowledge the correctness of every one of the items of expenditure. ' Underneath is the signature of the Zemindar. At the next page Rs. 2,14,850-12-4 is carried forward, to which is added ' salary from May to September 1913 Rs. 3,750 ' and 'Interest on the loans advanced by me (i. e., plaintiff) from time to time Rs. 2,400'--totalling Rs. 2,21,000-12-4. Underneath are the Zemindar's initials. The learned trial Judge has rejected these statements as in his opinion they contain an acknowledgment of a debt within the meaning of Article I of Schedule 1 to the Indian Stamp Act and should therefore have been stamped with a oneanna stamp.

3. Mr. C.P. Ramaswanai Aiyar, the learned Vakil for the appellant, contends in the first place that this reading of the document is wrong. But there can be no doubt whatsoever that the statement ' Due to me ' followed by the endorsement ' the balance of liability, etc., ' set out above does amount to an acknowledgment of a debt. It clearly purports to be more than a mere endorsement vouching simply for the correctness of the entries. We have been referred to a number of decided cases, but in each case one has to look to the nature of the endorsement, as showing what the parties intended. Here the intention of the plaintiff and the Zemindar clearly was that the statement in question should furnish evidence of the latter's liability. The cases which approach nearest to this are Sitaram v. Ramprosad I.L.R. (1902) C. 707 in which the words ' balance due Rs. 3 ' and Mulji Lala v. Lingu Makaji I.L.R. (1896) B. 201 where the words 'all accounts being made up Rs. 102 in full up to...' were held to amount to an acknowledgment, while in Galstaun v. Hutchison I.L.R. (1912) C. 789 the statement which was held not to amount to an acknowledgment was ' I accept as correct.'

4. The next contention of Mr. C.P. Ramaswami Aiyar that the statement 'The above does not include interest on them ' is a stipulation to pay interest within the meaning of Article 1 is also untenable. The case of Mulchand Lala v. Kashibullah Biswas 11 C.W.N. 1120 has no bearing as the words there were 'this amount will bear interest at the rate of Rs. 1-8-0 per cent. per mensem.'

5. It is then argued on behalf of the appellant that the statement at page 71 is a release' as defined in Article 55 of Schedule I to the Indian Stamp Act and therefore even if the writing at page 70 be held to be an acknowledgment of a debt, both should be read as one instrument to which either Section 5 or Section 6 of the Indian Stamp Act applies and that the document could not, therefore, be excluded from evidence but should have been admitted, the plaintiff being allowed to pay the penalty prescribed by Section 35 of the Act. Section 5 says 'Any instrument comprising or relating to several distinct matters shall be chargeable with the aggregate amount of the duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under this Act.' And Section 6 provides, 'Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties.' In my opinion the statement at page 71 ' I have examined... expenditure' was clearly intended to operate as a release of the Zemindar's right to claim an account from the plaintiff and this is within the meaning of Section 5 a distinct matter from the acknowledgment by the Zemindar of his liability to the plaintiff for a certain amount which is the effect of the preceding statement. Mr. Narasimha Aiyangar contended on behalf of the respondent that where the subjectmatter is one even though the instrument embodies distinct contracts, Section 5 does not apply. He says that since there was an acknowledgment by the Zemindar that as a result of the settlement of accounts a certain amount was due by him to the plaintiff it followed that he himself could have no claim against the plaintiff. But in applying Section 5 of the Indian Stamp Act one is concerned with what the parties purported to provide for by an instrument and not whether any particular provisions were necessary or might have been dispensed with. Nor can it be said that acknowledgment by a principal upon a settlement of accounts that a certain amount is due by him to the agent is in its legal effect the same as a release by the former of his right to claim an account from the latter which includes the right to open stated and settled accounts in certain circumstances. The English rulings cited by the respondent's learned vakil such as Limmer Asphalte Paving Go. v. Inland Revenue Commissioners (1872) L.R. 7 Exch. 211 the effect of which is stated in Halsbury's Laws of England, Vol. 24 at p. 707 throw no light on the present question and are based on the provisions of the English Stamp Act which are different in this respect from those of the Indian Stamp Act. I hold therefore that the statements at pages 69 to 71 of the account should be admitted into evidence as the plaintiff has paid into court the penalty due under Section 35.

7. Now regarding the law as to when settled accounts will be opened there is no room for doubt. It is perhaps best stated in the words of Jessel, M.E. in Williamson v. Barbour (1877) 9 Ch. D. 529 . 'Where the accounts have been shown to be erroneous to a considerable extent both in amount and in the number of items, or where, fiduciary relations exist and a less considerable number of errors are shown, or where the fiduciary relation exists and one or more fraudulent omissions or insertions in the account are shown, then the Court opens the account and does not merely surcharge or falsify.' Nor would the fact of a release following upon a settled account otherwise liable to be opened make any difference. In re Webb. Lambert v. Still (1894) 1 Ch. 73 Lindley, L.J. says 'what is necessary in order to set aside a settled account or a release, or both together, when the release proceeds upon the footing of an account? It is essential to show that there has been some injustice done to show that there has been some fraud, some pressure, some overcharge, something wrong to cloak up which the release has been obtained. Prove that and the release cannot stand.' In the same case Davey, L.J. states the law in this way: ' I take it that a release in the eye of a Court of Equity is nothing more than a record by deed of a settled account and unless the settled account is unimpeachable, the fact of the parties having signed a release will not assist those who depend upon it for a defence.' In the circumstances of this case the Court will not hesitate to open the so called settled account in spite of the release, if any substantial error is shown in the account.

8. [The judgment after dealing with the items in question proceeds.]

9. The findings of the learned Judge as to all these items are correct. They constitute serious errors in the accounts relied on by the plaintiff and fully justified the learned Judge in not treating them as closed by any settlement. He gave an opportunity to the plaintiff to apply for an account to be taken but he did not avail himself of that opportunity. In fact the plaintiff's suit is not for the taking of accounts but for the recovery of a definite sum on the footing of settled accounts. The 3 items which have been examined amount to more than what might be due to the plaintiff on account of arrears of salary and it is not proved that he advanced any moneys of his own to the Zemindar. The appeal will be dismissed with costs.

Phillips, J.

10. I agree in the order proposed, but I have considerable doubt as to whether the interpretation put upon the endorsement in Exhibit E by the learned Chief Justice is correct. Inasmuch as the recital as to release relates only to the items in respect of which an acknowledgment is given, the two matters do not appear to me to be ' distinct ' matters within the meaning of Section 5 of the Indian Stamp Act for the two matters are very closely connected and are practically the same. In order to bring a document within the terms of Section 6, it seems to me that document must be read as a whole and if as a whole it comes within two definitions in the schedule then it must be stamped with the stamp of highest value, where the duties chargeable are different. In this case the whole document can be read as an acknowledgment, the implied release in which is put into words, but the whole document cannot be read as a release to which the acknowledgment is subsidiary. The intention of the parties must also be looked to in construing the document and here they can hardly have, intended the document to operate as a release for a draft release deed was in existence at the time when Exhibit E was signed and was signed and registered immediately afterwards. I would therefore agree with Bakewell, J, that the document is an acknowledgment and being unstamped is inadmissible in evidence. I have only dealt very briefly with this point, as the admission of or rejection of the document does not affect the case on the merits.